Donohoe v Victorian WorkCover Authority
[2020] VCC 1405
•10 September 2020
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05576
| TRACIE ANNE DONOHOE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 26, 27 and 31 August 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 10 September 2020 | |
CASE MAY BE CITED AS: | Donohoe v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1405 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – crushing injury to right foot – whether pain and suffering consequences were “at least very considerable”
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622
Judgment: Leave to the plaintiff to bring a proceeding claiming pain and suffering damages in respect of injuries suffered on or about 26 October 2011 in the course of employment.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr M Fogarty | Slater and Gordon |
| For the Defendant | Mr A Moulds QC with Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
1 On or about 26 October 2011, Tracie Donohoe alleges that she suffered an injury to her right foot in the course of her employment with a labour-hire company, Workforce on Tap, in Shepparton. At the time, she was working at a factory operated by Snow Brand Australia Pty Ltd (“Snow Brand”).
2 Ms Donohoe seeks to commence a proceeding claiming damages for pain and suffering in respect of injuries suffered by her on that occasion. Her right to do so is governed by the provisions of Part 7, Division 2, of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
3 In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that she has suffered a “serious injury” as defined in the Act.[1]
[1]Section 335(2)(d) of the Act
4 The term “serious injury” is defined, insofar as it is relevant to this application, as:
“permanent serious impairment or loss of a body function.”[2]
[2]Section 325(1) of the Act
5 The body function relied upon in this application is that of Ms Donohoe’s right foot.
6 The term “permanent” is to be interpreted as meaning “likely to persist into the foreseeable future”.[3]
[3]Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622 at paragraphs [18]-[19]
7 With regard to pain and suffering damages, the impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses “fairly described as being more than significant or marked, and as being at least very considerable”.[4]
[4]Section 325(2) of the Act
8 In this application the parties are in dispute as to whether Ms Donohoe suffered a “serious injury” as defined such as to enable her to commence a proceeding claiming pain and suffering damages.
Background
9 Ms Donohoe is a fifty-two-year-old single woman. She resides in Tatura. Until 2010, she had lived most of her life in Wagga Wagga in New South Wales.
10 Ms Donohoe was educated to Year 10 and then trained as a secretary and worked as an administrative assistant in the New South Wales Education Department. She later worked in a similar capacity with a local company and local university.
11 In 1993, she commenced work as a personal assistant with the New South Wales Catchment Management Authority.
12 In about 2010, she retired from that Authority on medical grounds involving mental health issues (in particular, depression) which she had claimed had been caused by workplace bullying and harassment. A New South Wales WorkCover claim made by her was accepted.
13 Ms Donohoe was treated with antidepressant medication for some time. She decided to leave Wagga Wagga to make a fresh start and in September 2010, took up residence in Tatura in northern Victoria. She registered with a labour- hire company, Workforce on Tap.
14 Workforce on Tap arranged for her to work most of her time with a milk powder company, Snow Brand. By October 2011, she was working full time – 38 hours per week plus overtime of about four hours per week, working rotating shifts.
15 Ms Donohoe swore two affidavits in support of her application – sworn on 16 July 2019 and 20 July 2020.
16 Ms Donohoe deposed that, on 26 October 2011, whilst moving pallets of goods with a pallet lifter, her right foot became lodged between the lifter and another stack of pallets, causing injury to her right foot.
17 The following day, she saw Dr Manjiyil, a general practitioner, who arranged for x‑rays to be taken which revealed a fracture of her right little toe.
18 Four days later, she returned to work in the office. About three months later, Workforce on Tap placed her with a business named Rubicon Water as a receptionist. She worked in that capacity until March 2012, a period of about four to six weeks.[5] She deposed that, by that time, the business of Workplace on Tap had been sold.
[5]T13
19 Ms Donohoe then obtained employment with Goulburn Valley Health as personal assistant to the head of psychology. She worked there for about eight months before resigning. She deposed that people there were “not nice to me”.
20 In February 2013, she worked as an assistant for an accounting firm but left at the end of April 2013, again, because “people were not nice to me”.
21 In May 2013, she obtained a job as executive assistant to the Director of Infrastructure at the Greater Shepparton Council, working three days per week. She left that employment after twelve months because of problems she was having with a co-worker. She lodged a WorkCover claim in which she alleged that she had suffered an injury caused by bullying in that employment.
22 Ms Donohoe gave evidence that, if not for the accident and injury to her right foot, she would have continued working at Snow Brand. She said she did not like office environments and felt trapped in them.
Diagnosis of injury
23 Ms Donohoe wore a moon boot for some five or six months, but it did not help her. She was unstable on her feet because of the right foot injury. She deposed that, as a consequence of her instability, she had occasional falls. On one occasion she fell and injured her wrists.
24 Ms Donohoe continued to see Dr Manjiyil, her general practitioner. From and after 2012, she was referred to a number of specialists. In about 2013, she changed her general practitioner and commenced seeing a Dr Kennedy.
25 Ms Donohoe was referred to an orthopaedic surgeon, Mr Chew, who referred her for an MRI scan on 29 June 2012.
26 Mr Chew saw Ms Donohoe at least twice in about May and July 2012. In July 2012, she had reported that any walking made her toe swell, become intensely painful and sensitive to touch, and became red in colour. Mr Chew considered that the MRI showed no major abnormality. There was no oedema affecting the little toe.
27 Mr Chew accepted that she suffered pain and swelling and considered whether she was suffering from RSD – Reflex Sympathetic Dystrophy (now known as Chronic Regional Pain Syndrome Type 1 (“CRPS”)). He referred her to Dr Todhunter, a pain specialist, to investigate further.
28 Dr Todhunter initially saw Ms Donohoe on 1 March 2013. He reported she had suffered a crush injury to her foot and had fractured her terminal phalanx which had not united. Dr Todhunter had recommended Lyrica medication, which she took for a short time until she noted that her legs were swelling, and he told her to cease that medication.
29 Dr Todhunter was also given history by the plaintiff of:
· constant pain with intermittent stabbing pain under the nail
· numbness
· pain spreading up the outside of her foot and into the ankle
· associated swelling, coldness and mottling of the lateral foot
· severe disturbance of her sleep.
30 Dr Todhunter made a provisional diagnosis of CRPS in March 2013. He considered that she had some sympathetically maintained pain and that a lumbar sympathetic block might be useful.
31 Since then, Ms Donohoe has been examined by a relatively large number of practitioners, virtually all of whom have concurred with the diagnosis of CRPS consequent to the crush injury suffered in the subject accident. These were:
· Dr Elizabeth Kennedy, general practitioner, at Plaintiff’s Court Book (“PCB”) 25;
· Dr Rachel McDonald, general practitioner, at PCB 32, 34, 36 and 42;
· Mr Franklin Pond, vascular surgeon, at PCB 39;
· Dr Bernard Infeld, neurologist, at PCB 40;
· Dr Richard Sullivan, interventional pain specialist and anaesthetist, at PCB 49.
32 Dr Timothy Wood, a sports physician, saw the plaintiff in December 2012. He considered that, at that time, RSD was not evident but that the plaintiff had more of a CRPS. He considered that, whilst her symptoms were relatively manageable, they were obviously interfering with her ability to do a lot of walking and climbing of stairs.
33 Dr Wood saw the plaintiff again in August 2014, at which time the right little toe was swollen and red with brush allodynia and hyperalgesia predominantly through the dorsal aspect. Some discolouration of the other four toes was noted.
34 On this second occasion, Dr wood considered there was evidence of CRPS and that it was caused by the crush injury to her foot. He considered that she was not able to return to her pre-injury occupation in the foreseeable future.
35 Dr Roy Karna, a rheumatologist, examined the plaintiff in May 2017, April 2018 and October 2019. On each occasion he found no evidence of CRPS he considered that her presentation related to psycho-genic factors. Nevertheless, he accepted that she had suffered from CRPS in the past as a consequence of the subject accident.
36 Dr Peter Blombery, a vascular physician, examined and reported on the plaintiff in December 2017 and June 2020.
37 On his first examination, he reported that the history provided by the plaintiff – pain, burning sensation, changes in temperature and colour in the foot, were consistent with CRPS. He detected such changes in colour and temperature on his examination of her.
38 Dr Blombery reported that changes in temperature and colour of the foot, features of autonomic disturbance with ongoing pain, were diagnostic of CRPS.
39 Dr Blombery considered that she would have difficulty weight bearing and coping with a wide range of physical activities.[6]
[6]See PCB 53-54
40 Dr Blombery considered her prognosis for recovery after 6 years was poor. He considered there would be little change in her level of disability in the foreseeable future.
41 When Mr Blombery saw the plaintiff again in June 2020 it was by a video meeting on account of the COVID-19 virus restrictions. Her complaints were consistent with those on the previous occasion. Although his examination on that date was limited to video, he was of the opinion that his previous diagnosis was still applicable.
42 Many of the reports tendered by the plaintiff were from practitioners who had treated the plaintiff and consulted with her on a number of occasions. I am inclined to give those reports considerable weight. I accept that visual symptoms of CRPS are not always present and that the absence of such symptoms on a relatively few occasions of examination is by no means of significance.
43 I accept that Ms Donohoe suffered a crush injury to her right foot in the course of her employment involving a fracture of the little toe which took a considerable time to unite. I accept that the injury was the trigger for CRPS which has developed and is likely to continue for the foreseeable future. I accept that the pain in her right foot was a cause of her intermittent falls including the fall in which she injured her wrists.
Consequences of injury
44 Ms Donohoe takes Panadeine Forte (a powerful analgesic) when her foot symptoms are very bad. On average, she takes about 30 Panadeine Forte tablets per month (an average of about one per day).
45 Ms Donohoe continues to see a podiatrist at Lakeside Podiatry in Shepparton. She is no longer receiving physiotherapy or acupuncture, as she has to pay for this herself and cannot afford it.
46 Ms Donohoe has also had six sessions with a mental health worker, Ms Smullen, in Shepparton.
47 Ms Donohoe continues to see her general practitioner – previously Dr Kennedy and more recently, Dr McDonald. Prior to the COVID-19 restrictions, she was seeing Dr Kennedy about once a month.
48 Ms Donohoe continues to take medication for her right foot pain in the form of Panadeine Forte as needed. She also rubs Voltaren Gel into her right foot most days, which provides temporary relief. She takes sleeping tablets to help her sleep. She also takes antidepressant medication on a daily basis. Treatment for her depression is not a consequence of her workplace injury.
49 I accept that the consequences of her foot injury are as described in her two affidavits. In her second affidavit sworn on 20 July 2020, she deposed that she continues to suffer ongoing pain in her right foot, made worse if she stands or walks for long periods. Her pain is also increased if she wears shoes. Generally, she does not wear shoes at home. She notes that her right foot continues to regularly change colour. She says it can go from a bright red to a bluish/purplish colour, depending on what she has been doing and what the temperature is.
50 I accept that she has difficulties in weight bearing on her right foot and difficulties standing and walking for lengthy periods. I accept that she would not be able to safely ride a horse as she did pre-accident. I accept she would have difficulty maintaining her 2-acre property.
51 I accept that the plaintiff has suffered from a significant depressive condition and has done since before the subject injury. A consequence of that condition is that she is unsuited to office or administrative work which prevents her from working in some and perhaps most sedentary positions. It was for that reason that she had worked in a non-sedentary position such as the warehouse work in which she was engaged at the time of her injury. I accept that she has significant problems working in proximity to others and that attempts in the past to do so have resulted in significant mental health issues and cessation of such employment.
52 I accept that she was capable of performing the duties in which she was engaged in her employment in October 2011 and enjoyed such work. I accept that she is unfit to perform work duties which involve her being on her feet for substantial periods of time. I accept that she is unfit for the duties she was performing at Snow Brand and that the range of employment positions open to her currently and in the future is and will be significantly reduced.
53 I accept that the consequences of the injury, for her, are, when judged by comparison with other cases in the range of possible impairments or losses, “fairly described as being more than significant or marked, and as being at least very considerable”.
54 It follows that I will order that there be leave, pursuant to s335(2)(d) of the Act, for the plaintiff to bring a proceeding claiming pain and suffering damages in respect of the injuries suffered by her in the course of her employment on or about 26 October 2011.
55 I will hear the parties regarding any costs or other consequential orders sought.
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